Lane v. State, 971S279

• Decision Date: 01 November 1972
• Docket Number: No. 971S279,971S279
• Citation: 288 N.E.2d 258,259 Ind. 468
• Parties: David Milton LANE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 258

288 N.E.2d 258

259 Ind. 468

David Milton LANE, Appellant, v. STATE of Indiana, Appellee.

No. 971S279.

Supreme Court of Indiana.

November 1, 1972.

Frederick B. Robinson, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by David M. Lane from a judgment in the Marion Criminal Court, Division One, convicting him of the crime of Conspiracy to Commit a Felony. On June 4, 1970, the appellant was indicted for conspiring to commit the crime of second degree burglary. On August 19, 1970, he waived arraignment and entered a plea of not guilty. A jury trial was waived, and the cause was tried on April 22, 1971, before the Honorable John T. Davis, Judge. Upon conviction, the appellant was sentenced to the Indiana Reformatory for a term of not less than (2) years nor more than fourteen (14) years.

The following issues have been raised on appeal.

1. That the penalty imposed by the conspiracy statute is in violation of Art. 1, § 16 of the Constitution of the State of Indiana which provides that 'all penalties shall be proportioned to the nature of the offense.'

2. That the evidence is insufficient to sustain the conviction.

The conspiracy statute, IC 1971, 35--1--111--1, (Ind.Ann.Stat. § 10--1101 (1956 Repl.)), provides for a penalty of two to fourteen years upon conviction. The burglary statute, IC 1971, 35--13--4--4(b), (Ind.Ann.Stat. § 10--701(b) (1956 Repl.)), provides for a penalty of two to five years following a conviction for second degree burglary. It is appellant's contention that he cannot receive a greater sentence for conspiring to commit second degree burglary than he would have received for the actual commission of the offense. In support of his position, appellant relies upon Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815 and Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498. In both of those cases, this Court decided that a person cannot receive a penalty for the commission of a lesser included offense which is greater than the penalty he would have received for the commission of the greater offense. The legal reasoning set forth in Dembowski and Hobbs is applicable to the case at bar only if the crime of conspiracy to commit a felony is a lesser included offense of the particular felony in question. It is well established that an offense will be considered a lesser included offense only when it is impossible to commit the greater offense without first having committed the lesser. See, House v. State (1917), 186 Ind. 593, 117 N.E. 647; Watford v. State (1957), 237 Ind. 10, 143 N.E.2d 405; Hobbs v. State, supra. Applying this test to the crime of conspiracy, it must be recognized that a material element of conspiracy is the unified or concerted action of two or more persons. The unified or concerted action of two or more persons is not an element of second degree burglary. The distinction between these crimes was recognized in Durke v. State (1932), 204 Ind. 370, 378, 183 N.E. 97, 100, where we stated:

'(I)t must be said that the essential proof in a prosecution for burglary would not be sufficient to convict one charged with the crime known as 'conspiracy to commit a felony'--burglary. In the latter case the evidence must show a uniting or federation of two or more persons to commit the burglary.'

It necessarily follows that the crime of conspiracy to commit burglary is not an included offense of the crime of burglary under the laws of this state, and we conclude, therefore, that Dembowski and Hobbs are not controlling of the constitutional issue presented in the case before us.

A somewhat similar question was decided by the Supreme Court of South Carolina in the case of State v. Ferguson (1952), 221 S.C. 300, 70 S.E.2d 355, cert. denied, 344 U.S. 830, 73 S.Ct. 35, 97 L.Ed. 646. In resolving this issue, the court stated:

'Under the last group of exceptions the appellants contend that there was error in sentencing them to three years and a fine of one thousand dollars under the conspiracy count. Their argument is that one convicted of conspiracy to commit a statutory misdemeanor cannot be punished more severely than the penalty set out for such misdemeanor itself, and consequently that the limit in this case on the conspiracy count, is one year imprisonment and a fine of one thousand dollars, as provided for violation of the lottery statute.

'We have no statute in this State providing that the punishment for conspiracy to commit a crime shall not exceed the penalty for the completed offense. At 15 C.J.S. Conspiracy, § 96, p. 1165, it is said that the weight of authority holds 'that the legislature has the undoubted power to enact statues which impose a heavier punishment for a conspiracy than for the offense which it is the object of the conspiracy to commit, and that a sentence in conformity with legislation of this character is unobjectionable and valid. The sentence of one convicted of conspiracy to violate a particular statute and to commit a certain crime is not illegal because of any difference in the maximum length of imprisonment authorized for the substantive offenses'.

'In many instances a combination of persons to commit a crime is a more serious offense and more dangerous because of its increased power to do wrong, than the commission of the contemplated crime itself.' 221 S.C. at 306, 307, 70 S.E.2d at 358.'

It appears that the reasoning adopted in State v. Ferguson, supra, is in accord with the majority view in this country. See, Steele v. State (1959), 52 Del. 5, 151 A.2d 127; Martin v. United States (1939), 100 F.2d 490, cert. denied, 306 U.S. 649, 59 S.Ct. 590, 83 L.Ed. 1048; Murry v. United States (8th Cir. 1922), 282 F. 617. That a conspiracy to commit a crime may properly be considered to be more serious than the commission of the contemplated crime was also recognized in United States v. Rabinowich (1915), 238 U.S. 78, 88, 35 S.Ct. 682, 685, 59 L.Ed. 1211, where the court stated:

'For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime.'

Thus it appears well settled that the crime of conspiracy is a separate and distinct offense for which the legislature may properly impose a penalty which need not be proportionate to the penalty imposed for the commission of the contemplated offense. Appellant's contention that the statutory penalty is unconstitutional is without merit.

Appellant's final argument is that the evidence is insufficient to sustain the conviction. More specifically, it is claimed that there was no evidence presented which tended to establish that the appellant was related to or associated with his alleged accomplice, nor did the evidence disclose any understanding, agreement, or communication between them. We do not agree.

The evidence most favorable to the State is as follows: On the evening of January 25, 1970, two Indianapolis policemen were on routine patrol in the vicinity of the Shindig Tavern. They approached the rear of the tavern with the headlights of their patrol car turned off. With the aid of a spotlight which illuminated the area behind the tavern, the policemen were able to observe the appellant and his accomplice working on the back door of the tavern. The accomplice, Kitchens, was holding a flashlight while the appellant, Lane, was using a pry bar on the padlock which secured the door. The men were successful in breaking the padlock before they became aware of the policemen's presence. Both men attempted to flee, but they were apprehended by the police.

The facts presented in this case are almost identical to those found in Johnson v. State (1968), 251 Ind. 182, 240 N.E.2d 70. In Johnson, the two defendants and an unidentified third party were surprised by the police during their attempt to pry open the rear door of a supermarket. In concluding that the evidence was sufficient to sustain a conviction of conspiracy, the Court stated:

'It is well settled that a conviction of conspiracy can rest on circumstantial evidence. In Gaynor v. State (1966), 247 Ind. 470, 217 N.E.2d 156 this Court stated:

'It has been held that a conspiracy does not need to rest solely on words giving rise to an express agreement, but may be inferred from acts and conduct of the persons accused done in pursuance of an apparent criminal or unlawful purpose in common between them.' Citing Smith v. State (1960), 241 Ind. 311, 170 N.E.2d 794; Steffler v. State (1952), 230 Ind. 557, 104 N.E.2d 729.

In Robertson v. State (1952), 231 Ind. 368, 108 N.E.2d 711 the Court stated:

'There must be an agreement and there must be evidence to prove the agreement directly, or such a state of facts that an agreement can be legally inferred.' 231 Ind. 368, 370, 108 N.E.2d 711, 712. In Steffler v. State, supra, this Court quoted Brewster v. State (1917), 186 Ind. 369, 115 N.E. 54, wherein it was stated:

'It is not necessary to prove that the defendants came together and actually agreed in terms to have the unlawful purpose, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another another part of the same so as to complete it with a view to the attainment of that same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that...